1. QAZI MUHAMMAD AMIN AHMED, J.---Criminal Appeal No,82 of 2010 is clubbed with Murder Reference No,33 of 2010 that arise out of an incident which occurred on 28,08.2008 at 12.30 p.m. within the area of Mauza `Farid Sanpaal', situated at a distance of 3-miles from Police Station Talumba District Khanewal. According to complaint (Ex.PA) recorded by Muhammad Waseem Inspector (PW-12) on the statement of Shah Muhammad (PW-2) converted into formal FIR recorded by Zahoor Ahmad, ASI. Case set up in complaint (Ex.PA) is that Shah Muhammad complainant (PW-2) a cultivator by profession was `Khala Zaad' of Ayesha Bibi (deceased) who married with Muhammad Aslam- appellant two years back. Muhammad Aslam appellant is also `Khala Zaad' of Shah Muhammad PW. According to the complainant Ayesha Bibi was not enjoying good health and on 27.08.2008 he learnt that she had seriously fallen ill and on this information Rehmat Ali deceased went to visit Ayesha Bibi during the night of 27.08.2008. On 28.08.2008, complainant > accompanied by Muhammad Riaz on a motorcycle went to visit Ayesha Bibi and at about 12.30 P.M when they reached near the house of Ghulam Muhammad, they per chance, met Muhammad Bakhsh and Abdul Shakoor PWs; All four of them, went to the outer door of `have of Ayesha Bibi and heard noise from inside. They tried to enter the `haveli' but the door was bolted from inside. It is complainant's case that they saw standing by the wall, Muhammad Aslam-appellant dealing repeated Kassi blows on Ayesha Bibi (deceased) when Rehmat Ali who was present inside the house tried to resist, he too was attacked who upon receipt of injuries felled on the ground. It is complainant's case that when he and other PWs forced their entry by breaking the outer door, Muhammad Aslam fled from the scene by scaling western wall of the 'haver. When the PWs attended Ayesha Bibi and Rehmat Ali, they had already succumbed to the injuries.
2. Motive for the occurrence is cited as suspected illicit liaison between both the deceased.
3. Matter was reported to the police at 2.30 p.m. Upon spot inspection, I.0' besides taking other investigative steps, secured blood stained earth from two points. Recovery memos are (Ex.PD & Ex.PE), respectively. According to the reports of Chemical Examiner (Ex.PR, Ex.PS, & Ex.PT) and those of Serologist (Ex.PU), pieces of earth were found stained with blood of human origin. Autopsy was conducted at 7.00 p.m on 28.08.2008 Dr.Nazir Ahmad Hiraj (Pw-6) noted following injuries on the person of Rehmat Ali deceased:- "i) An incised wound 17 cm x 4 cm x bone exposed with under lying bone cut into pieces and brain matter was coming out from the wound. This injury was situated on the back of scalp.
4. An incised wound 20 cm x 8 cm x bone exposed under lying bone cut into pieces, on the left side of scalp 6 cm about from left ear. Brain matter was coming out from the wound. iii) An incised wound 6 cm x 2 cm x bone exposed on the back of left thigh 22 cm below from left enterior iliac crest.
5. An incised wound 23 cm x 11 cm x bone exposed and bone cut on the back of left knee. v) An incised wound 11 x 3 cm x bone exposed and bone cut on the back of left lower leg 20 cm above from left ankle joint. vi)An incised wound 6 cm x 1 (1/2) cm x muscle deep on the outer side of left upper arm in the midline. vii)An incised wound 12 cm x 7 cm x bone exposed and bone cut on the back of left elbow. viii)An incised wound 6 cm x 3 cm x bone exposed and cut on the inner side of left wrist joint".
6. According to the Medical Officer cause of death of Rehmat Ali was due to shock and hemorrhage (haemorrhage was mostly external) in total 8 injuries were noted. Injury Nos, 1 and 2 was opined as fatal individually whereas injury Nos, 1 to 8 in the opinion of Medical Officer were sufficient to cause death collectively. It is pertinent to mention here that all the injuries were incised wound caused by sharp edged weapon. Postmortem on the dead body of Mst. Ayesha Bibi was conducted at 11.00 p.m. on 28.08.2008 by Dr. Sameena Masood, (PW-7), who noted following injuries:-- Incised wound 13 cm x 3 cm x underlying bone cut on right side of head just above the right ear. On dissection underlying meninges and brain matter damaged. (Temporal and pariteal bones are cut). ii)Incised wound 13 cm , x 3 cm x underlying bone cut (frontal cut on the front and top of head 3 cm right above eye brow underline meninges and brain matter was damaged. iii)Incised wound 7 cm x 1.5 cm underline bone was cut just above left eye brow. iv)Incised wound 7 cm x 2.5 cm x underline bone cut, underline meninges and brain matter was damaged. Wound is situated on the left temporal region 2cm in front of left ear. v) Incised wound 4 cm x 1.5 cm in front of left forearm 4 cm proximal to wrist. vi)Incised wound 4 cm x 2 cm into bone deep on front of palm of right hand. vii)Incised wound 6 cm x 1 cm into bone deep on front of right wrist. viii)Incised wound 8 cm x 2cm x bone deep in front of right thigh 5 cm above right knee. ix) Incised wound 8 cm x 2 cm x bone deep situated in front of left knee joint. Corresponding cuts are present on shalwar".
7. WMO Dr: Sameena Masood (PW-7) opined that injuries Nos, 1, 2, 3 and 4 (head injuries) were sufficient to cause death in ordinary course of nature. However, in her opinion death occurred due to haemorrhage and shock.
8. 2.After registration of the case, complainant made a supplementary statement wherein he alleged that Muhammad Ilyas son of Muhammad Yousaf had also participated in the occurrence by catching hold of Mst. Ayesha Bibi deceased. Both the accused were arrested on 12.09.2008.
9. Muhammad Aslam appellant on 16.09.2008 pursuant to a disclosure led to the recovery of blood stained Kassi (P-1) along with blood stained clothes vide recovery memo (Ex.PB) which were made into a sealed parcel.
10. 3.Upon conclusion of investigation, accused were sent to face trial; they were indicted on 02.01.2009, they pleaded not guilty and claimed trial.
11. 4.Prosecution in order to prove charge against the appellants and co-accused produced as many as 13 witnesses besides placing reliance on forensic reports.
12. 5.Position taken by both the accused in their examination under Section 342, Cr.P.C. is as follows:- Appellant(Muhammad Aslam):- "This is false case against me. This was totally on un witnessed occurrence. Actual culprit was not known or traced, the complainant involved me in this case on suspicion, surmises and conjectures.
13. The best evidence of Pws Mr. Riaz and Abdul Shakoor was designedly withheld by the complainant.
14. The complainant PW-2 is the real brother of deceased Rehmat Ali whereas PW-3 Muhammad Bukhsh is the real father of the deceased Mst. Ayesha Bibi. They, therefore, have deposed against me. Both are not the residents of the vicinity where the occurrence took place. Both are interested witnesses. The impartial witnesses M. Riaz and Abdul Shakoor were given up".
15. Appellant(Muhammad Ilyas):- "This is a false case against me. This is totally an un-witnessed occurrence. The complainant involved me in suspicion, surmises and conjectures. Neither I am nominated in FIR nor any supplementary statement has been put to me in this statement under section 342, Cr.P.C. nor the same cannot be read against me".
16. 6.Upon conclusion of trial, the learned trial Judge, Mianchannu vide impugned judgment dated 23.01.2010 convicted Muhammad Aslam appellant under Section 302(b), P.P.C. and sentenced him to death on two counts whereas Muhammad Ilyas was convicted under section 302(b) read with Section 34, P.P.C. and sentenced to imprisonment for life with benefit of Section 382(b), Cr.P.C. There is no mention of counts.
17. 7.It is contended on behalf of the appellants that occurrence did not take place in the manner as stated by Shah Muhammad(PW-2) in (Ex.PA); that there was no occasion for Rehmat Ali (deceased) for his presence in the company of Ayesha Bibi(deceased) in her house; that autopsy report of Mst. Ayesha revealed that she was a young lady of average physique which circumstance belies the prosecution claim that she had fallen seriously ill and for that reason she was visited by Rehmat Ali(deceased) and Shah Muhammad-complainant; that Rehmat Ali's lone departure to visit Ayesha Bibi during the preceding night speaks volumes in itself; that supplementary statement whereby Muhammad Ilyas appellant was implicated subsequently clearly indicated that witnesses had not seen the occurrence and their testimony on this score is indivisible; that there is inordinate delay between the occurrence, its report and medical examination which clearly indicated that inquest reports were not available till 7.00 p.m. and 11.00 p.m. respectively, a circumstance suggestive of deliberations and consultations; that presence of rigor mortis noted by Dr. Sameena Masood (PW-7) on the dead body of Ayesha Bibi in the hot weather of August clearly suggested that death occurred during the night between 27/28.08.2008; that Dr. Nazeer Ahmad Hiraj (Pw-6) did not note any corresponding mark on the last worn clothes of Rehmat Ali(deceased) and that ocular account was contradicted by medical evidence.
18. 8.Conversely, the learned Deputy Prosecutor General assisted by learned counsel for the complainant argued that both the deceased were done to death in a brutal and callous manner; that Muhammad Aslam appellant owes an explanation as to how both the deceased met their homicidal death inside his residential premises; that witnesses had no animus or grudge against the appellants, therefore, they are worthy of credit; that ocular account is corroborated by medical evidence and recoveries. It is finally argued, that parties being known to each other, there was no occasion for mistaken identity and substitution is a rare phenomenon.
19. 9.We have heard the learned counsel for the parties, Deputy Prosecutor General, Punjab and perused the record.
10. Shah Muhammad complainant, Muhammad Aslam appellant, Rehmat Ali(deceased) and Ayesha Bibi (deceased) are cousins interse (Khala Zaad) with no previous bad blood amongst them. It is strange to note that as to how information of Ayesha Bibi's indisposition was conveyed to Shah Muhammad (complainant) and it is more astonishing as to why Rehmat Ali(deceased) went to visit her during night time all alone. This is not only highly improbable but antithetical to our social norms and ethos to visit a young lady in prohibitory degree at odd hours, no matter how closely related. There is nothing on the record that Ayesha(deceased) was suffering from any serious disease. On the contrary her autopsy report indicates that she was of average physique. In this backdrop the stated purpose of Rehmat Ali's visit to the house of the deceased is far from being plausible and a different scenario is spelt out. Equally improbable is presence of Shah Muhammad, Muhammad Ramzan, Muhammad Bakhsh and Abdul Shakoor who claimed to have reached the spot exactly on a point of time when both the deceased were under attack. Such coincidence seldom occurs. Had they been present at the spot it was not much difficult for them to apprehend Muhammad Aslam who was not armed with any lethal weapon. Prosecution's stated position that both the deceased were assaulted with the Kassi is not in line with medical evidence which showed that both the deceased sustained incised wounds which could not be possibly caused with a Kassi which is a husbandry instrument with a heavy metal blade with no sharp edges. Subsequent implication of Muhammad Ilyas-appellant through a supplementary statement vitiated the entire credibility of the witnesses as their initial omission/failure to see Muhammad Ilyas holding Ayesha in his arms is inconceivable; their testimony is indivisible on this point if they had not seen Muhammad Ilyas appellant in the first place, they had not seen Muhammad Aslam either. Massive violence inflicted upon both the deceased, though reprehensible and unfortunate and absence of corresponding cut marks on the last worn clothes of Rehmat Ali (deceased) are suggestive of some different scenario. Mere nomination of accused by witnesses, attribution of injuries to them and support of medical evidence alone cannot sustain a charge involving capital sentence unless such pieces of evidence are found confidence inspiring by qualifying the touch stone of probability and truthfulness. Occurrence took place inside the house of Muhammad Aslam appellant and this fact ipso-facto cannot saddle him with the responsibility of this incident, in the absence of a positive proof, structured on evidential basis, we can at the most suspect that Muhammad Aslam had surprised the deceased and murdered Ayesha deceased for her infidelity and Rehmat Ali for being in liaison with her but suspicions are after all suspicions. Even if, we are morally satisfied that on God's earth none other than Muhammad Aslam appellant had any motive to brutally murder the deceased, we cannot base conviction involving capital charge on the basis of moral certainty. Conviction can only be recorded on the basis of evidentiary certainty as has been held in the case of Muhammad Asghar alias Nannah and others v. The State (2010 SCM R 1706). Presence of the witnesses at the spot at the relevant time is highly improbable; on their own showing they had forced their entry after breaking the main door to see both the deceased dead. Postmortem is delayed. Medical evidence is not in line with ocular account. What exactly preceded the occurrence remains shrouded in mystery. It would be highly unsafe to maintain conviction in these ' circumstances. Resultantly, Crl. Appeal No, 82 of 2010 is allowed. Impugned judgment dated 23.01.2010 is set-aside and appellants are acquitted from the charge. Muhammad Aslam appellant is in jail, he shall be set at liberty if not required in any other case. Muhammad Ilyas appellant is on bail, his surety stand discharged.
20. Murder Reference No,33 of 2010 is answered in NEGATIVE and death sentence awarded to Muhammad Aslam is NOT CONFIRMED.